Class Actions and Complex Litigation jacksonlewis · 2020. 1. 13. · Jackson Lewis P.C. Our Class...
Transcript of Class Actions and Complex Litigation jacksonlewis · 2020. 1. 13. · Jackson Lewis P.C. Our Class...
jackson lewisPreventive Strategies and
Positive Solutions for the Workplace ®
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Class Actions and Complex Litigation
Jackson Lewis P.C.
Our Class Actions and Complex Litigation Practice
combines creativity and experience with extensive subject
matter knowledge. Our facility with federal and state
wage and hour law, discrimination law, ERISA and
other laws assists clients in spotting vulnerabilities and
developing strategies to avoid this massive litigation.
When necessary, we aggressively defend class action
claims. We have had remarkable success opposing class
certification and negotiating favorable settlements.
Wage and Hour Class Action Avoidance and DefenseWage and hour cases - which require no showing of intent
and can result in enormous damages awards - are filed
in federal court more frequently than any other type of
employment law class or collective action. As wage and
hour litigation continues to grow at an ever-increasing
pace, Jackson Lewis strives to help clients prevent issues
before they arise and obtain the best possible outcomes
when defending cases in state and federal court.
Jackson Lewis’ Wage and Hour Practice Group.
Counseling clients about wage and hour issues,
performing wage and hour compliance reviews and
defending related litigation have been three of our
firm’s core services for over 55 years. Our attorneys
have negotiated successful resolution of claims alleging
misclassification of workers’ exempt status, overtime pay
violations, “off the clock work,” inaccurate time and
payroll records, time clock rounding practices, and other
wage and hour issues for hundreds of employers with
nationwide or multi-state operations. We have defended
scores of collective or class-type actions brought by
private parties and also by federal and state Departments
of Labor.
A Preventive Approach. When a wage and hour
violation affects many employees over an extended period
of time, it can give rise to substantial liability - even if the
employer acted in good faith. We believe it is important
to address potential wage and hour issues before plaintiffs
bring a lawsuit or the government begins an investigation.
Jackson Lewis regularly assists clients in reviewing
company policies and practices and then pointing out
areas of non-compliance and making suggestions for how
to come into compliance in a way that fits with the client’s
operational needs and minimizes the risk of subsequent
litigation or government investigation. Some of the areas
we focus on include:
• Classification of employees as exempt or non-exempt
from overtime, including examining job duties as well as
compensation practices such as deductions from wages;
• Classification of workers as independent contractors or
employees;
• Proper compensation for all hours worked by non-
exempt employees, including activities at the start and
end of the workday and tasks performed away from the
workplace;
• Proper calculation of overtime, including consideration
Employment litigation is more complex than ever. The dramatic increase in multiple-
plaintiff litigation poses new challenges. Class and collective actions have captured the interest
of the plaintiff’s bar, the media and the general public. They pose a significant threat to U.S.
corporations, often damaging reputations and creating economic hardship.
of all required compensation in the regular rate and
the allocation of compensation items to the proper
workweek(s);
• Proper treatment of meal and rest periods;
• Whether an employer uses the fluctuating workweek
correctly;
• Compliance with child labor laws;
• Timekeeping procedures; and
• Recordkeeping.
We also assist clients in drafting policies for handbooks
and designing training for management personnel.
Defending Wage and Hour Class Actions. Our basic
approach in defending employers in wage and hour
class actions may be briefly summarized as follows: a
vigorous and focused defense coupled with lean staffing
by experienced class action attorneys. Drawing upon the
experience we have gained through defending hundreds
of class and collective actions over the last several years,
we try to provide realistic assessments of liability and
damages as early as possible in the litigation, and we
work to develop strategies that make business sense,
recognizing the implications for the business operations
going forward.
This approach has proved to be successful. We have
defeated plaintiffs’ attempts to expand individual or
multiple plaintiffs’ efforts into massive class or collective
actions in a number of cases and have prevailed on the
merits of a multitude of such actions. Some of our recent
successes include:
• Obtaining dismissals of class claims either voluntarily or
involuntarily;
• Limiting nationwide class claims to single facility claims;
• Defeating conditional certification and final certification;
• Obtaining summary judgment on the underlying merits
of the class claim;
• Obtaining extremely favorable settlements;
• Conducting multi-state “blitz” campaigns with a
focused, effective and efficient approach; and
• Implementing compliance strategies while the litigation
is pending.
Discrimination Class ActionsThe EEOC’s renewed effort to focus litigation efforts on
systemic discrimination is only one of the latest major
developments signaling a resurgence of employment class
action claims. Plaintiffs in virtually all protected classifica-
tions are resorting to this fearsome weapon. Resolving
cases on a class-wide basis is not only expensive but often
requires employers to turn control of certain employ-
ment decisions and practices over to courts, agencies and
private parties as part of programmatic relief.
Prevention: Jackson Lewis’ In-House Capabilities are
Unmatched. Unlike most firms, Jackson Lewis offers a
variety of preventive tools for “spotting” and resolving
indicators of systemic discrimination prior to litigation.
In the course of defending government contractors
in systemic discrimination cases before the OFCCP,
our Affirmative Action Practice Group has developed
the in-house expertise to perform class-based liability
vulnerability audits that evaluate employers’ personnel
processes and practices. Through this internal network of
experts, Jackson Lewis also has the resources to manage
and analyze large volumes of data and model estimated
damages in class and collective action litigation.
Jackson Lewis can help clients prevent systemic class
action litigation by:
• Performing standard, as well as more complex compen-
sation analysis, such as multiple regression analysis;
• Conducting self-audits of compensation systems;
• Conducting robust statistical analysis of personnel
selection decisions;
• Performing adverse impact analysis designed to “red
flag” all areas of potentially troubling adverse selection
trends affecting protected groups;
• Conducting “reduction in force” analysis to determine
whether a company’s selection decisions during the course
of a layoff are having an adverse impact on any particular
protected group; and
• Performing various kinds of diversity analyses to identify
deficiencies and trends in female and minority
representation across organizations.
Defending Discrimination Class Actions. Not only does
Jackson Lewis have the expertise to help employers avoid
systemic discrimination litigation by conducting privileged
audits, but it also has the experience and knowledge nec-
essary to aggressively defend class action discrimination
claims. We have successfully opposed class certification,
negotiated favorable settlements, and even convinced class
counsel to withdraw claims in a multitude of cases, often
working with labor economists and statisticians to defeat
plaintiffs’ commonality arguments and disprove their
allegations. Some of our recent successes include:
• Defeating certification of a proposed nationwide class of
8,000 female sales representatives alleging sex discrimina-
tion with regard to pay, promotions and terminations;
• Defeating certification of a proposed nationwide class of
30,000 women alleging sex and pregnancy discrimination
based on the exclusion of prescription drug coverage for
birth control pills;
• Defeating certification of a proposed southeastern region
class of 275 African American store managers alleging
segregation in placement;
• Convincing class counsel in two related cases involving
several hundred African American store managers claim-
ing they were segregated to stores in minority neighbor-
hoods and systematically denied promotions based on
their race to voluntarily dismiss all class claims;
Jackson Lewis P.C.
• Convincing class counsel to voluntarily dismiss a class
action involving 2,000 current and former African Ameri-
can employees claiming they were assigned harder work,
paid less and terminated based on their race; and
• Serving as class monitoring counsel by a consortium of
insurance companies in the Abdallah v. Coca Cola class
action. We attended the mediation and rendered an
opinion on liability and the reasonableness of the
proposed settlement.
Prevention and Defense of ERISA Class ActionsJackson Lewis represents officers, directors, other plan
fiduciaries, employers, plans, plan administrators, and
third-party administrators in all manner of complex
ERISA litigation, including:
• Claims for breach of fiduciary duty;
• Welfare benefits due under group health, life and
disability insurance plans;
• Severance;
• Benefits under cash balance, 401(k), ESOP and other
pension plans;
• COBRA violations;
• Statutory penalties under ERISA; and
• Violations of ERISA’s non-interference provision.
Through user-friendly advice, materials and training
programs, we offer our clients innovative yet practical
strategies for coping with complex benefits issues and
minimizing potential exposure.
When defending ERISA class actions, we first evaluate
with the client the benefits and risks of negotiating a
settlement. If early resolution is not feasible, we seek
to resolve the case through initial dispositive motions.
These motions isolate key ERISA issues such as standing,
preemption, lack of availability under ERISA of the
requested relief, failure to exhaust administrative
remedies, and the impact of releases executed by the class
members, to name just a few. We then vigorously defend
against class certification.
A Comprehensive Approach to Electronic Discovery Management in Complex LitigationJackson Lewis has the infrastructure and expertise
necessary to guide clients through even the most
complex electronic discovery projects. Our integrated
processes, state-of-the-art technology and expert project
management skills enable Jackson Lewis attorneys to
efficiently handle all aspects of electronic discovery while
complying with legal obligations and managing costs.
At Jackson Lewis, we believe that effective planning
and management are key components of the electronic
discovery process. We work with clients to develop
proactive case strategies that satisfy all document
retention and production obligations without imposing
an undue burden on business operations. Recognizing
that cases and clients differ, we frequently assign a
litigation analyst to work with the Jackson Lewis legal
team and our client’s information technology staff
in order to understand and map the client’s network
topology and document environment.
The firm’s ability to marshal teams of attorneys and
paralegals from nearly 55 offices spread across the
country gives us a competitive advantage in tackling
burdensome document review projects in class action
and other complex litigation. However, when it is more
efficient and cost-effective to use outside vendors, we
work with clients to choose an appropriate vendor. We
have national pricing agreements in place with select
vendors and have successfully leveraged our firm’s size
and complex litigation caseload to negotiate competitive
pricing for electronic discovery work. We also work
closely with specialized vendors for forensic collection
and analysis, document imaging and full-text extraction,
and electronic discovery processing and printing.
In addition to assistance during the course of litigation,
Jackson Lewis helps employers develop electronic
information retention and destruction policies, employee
technology and electronic communication policies,
and formalized litigation hold procedures that take
into account each client’s organizational structure,
technological capabilities and firm culture.
Contact Jackson LewisTo learn more about our services, please visit us online at
jacksonlewis.com.
Jackson Lewis P.C.
Dec13
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Positive Solutions for the Workplace ®
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About Jackson Lewis P.C.
With over 765 attorneys practicing in nearly 55 locations
throughout the U.S. and Puerto Rico, Jackson Lewis provides
creative and strategic solutions to employers in every aspect of
workplace law. Recognized as the 2014 Law Firm of the Year
in the category of Litigation – Labor & Employment, and ranked
in the First Tier nationally in the categories of Employment and
Labor Law on behalf of Management in U.S. News – Best Lawyers®
“Best Law Firms,” our firm has one of the most active employment
litigation practices in the U.S.